Last week in one of the Long Covid Facebook Groups there was a discussion about whether Long Covid was a disability. Given this, in my blog this week I am going to discuss this further.
- How is disability defined?
- What does this mean for people living with Long Covid?
- Employment tribunal
- Workplace modifications
How is disability defined?
ACAS’ definition of disability is outlined in Box 1. This is a legal definition.
Box 1: ACAS’ definition of disability
|In law, a disability is a physical or mental impairment that has a ‘long-term and substantial adverse effect‘ on a person’s ability to do normal day-to-day activities.
‘Long term‘ means either:
‘Substantial adverse effect’ means more than just a minor impact on someone’s life or how they can do certain things. This may fluctuate or change and may not happen all the time.
What does this mean for people living with Long Covid?
Long Covid is still a relatively new illness, and it will take time to understand it fully. It can affect a person’s day-to-day activities and it’s currently understood that it can last or come and go for several months, even years. In the UK, unlike, cancer, AIDS or multiple sclerosis (MS), a diagnosis of Long Covid does not automatically mean you are disabled. Given this, whether Long Covid is a disability depends on how it impacts on you as an individual.
Many, but not all, people with Long Covid will meet the legal definition of disability set out in Box 1. However, this is currently decided on an individual basis.
A common question in the Long Covid Facebook groups is whether occupational health have to confirm that you are disabled before your employer is required to make any workplace adjustments under the 2010 Equality Act. But this is NOT true.
An employer should consider whether an employee may be disabled even if they haven’t declared this (Box 2). This is the case even if occupational health hasn’t stated whether the 2010 Equality Act applies. Employers should focus on the workplace modifications (reasonable adjustments) they can make rather than trying to work out if an employee’s condition is a disability.
Box 2: Statutory Code of Practice on Employment and disability
|The Statutory Code of Practice on Employment 2011 Ch 5, Para 5.15 states: “It is not enough for the employer to show that they did not know that the disabled person had the disability.
They must also show that they could not reasonably have been expected to know about it.
Employers should consider whether a worker has a disability even where one has not been formally disclosed, as, for example, not all workers who meet the definition of disability may think of themselves as a ‘disabled person’.”
One employment tribunal concluded that an individual with Long Covid is disabled. However, employment tribunals do not set legal precedence. For legal precedence an Employment Appeal Tribunal is needed.
If you are disabled your employer must legally consider what workplace modifications can be put in place to support you at work. However, legally these are called reasonable adjustments and it is up to the employer to decide what is reasonable.
Some examples of workplace modifications suggested by the Society of Occupational Medicine (SOM) in their 2022 return to work guidelines can be seen in Table 1.
Table 1: Examples of workplace modifications (reasonable adjustments) (SOM 2022)
|Starts, finishes, and breaks
|Shorter, days off between workdays
|Able to pace
|Consider suspending late/early/night shifts – work at the time of days they are at their best
|Fewer tasks than normal within a timeframe
More time to complete tasks
Not being required to work to tight deadlines
|Temporary changes to duties or tasks
|Clear line of help
Someone to ask or check with –‘buddy’ system
Time off for appointments
Not working in isolation
‘Phone a friend’ peer support
|Working from home
Near a toilet
|Voice recognition software
Remote meeting software
|Advice and assessment should be taken from relevant occupational and workplace professionals.
In reality, many healthcare workers are struggling to have workplace modifications (reasonable adjustments) put in place (Figure 1).
Figure 1: Fighting for reasonable adjustments in the NHS
The results of a survey carried out by the TUC and Long Covid Support published in March 2023 suggest that negotiating workplace modifications is getting harder (Figure 2).
Figure 2: TUC and Long Covid Support: Workers’ Experiences of Long Covid
Given the workforce crisis within the NHS and more widely across the UK, it is surprising employers are not working harder to support their disabled staff in the workplace. This is especially shocking given that nearly half of participants in the TUC and Long Covid Support survey indicated they caught covid at work; seems to me it’s time for a rethink alongside more creative thinking to support people back into the workplace.
Further information about reasonable adjustments can be accessed via the links in Box 3.
Box 3: Additional information about reasonable adjustments